People v. Rose, Docket No. 69261

• Decision Date: 04 May 1984
• Docket Number: Docket No. 69261
• Citation: 347 N.W.2d 774,132 Mich.App. 656
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence Michael ROSE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 774

347 N.W.2d 774

132 Mich.App. 656

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence Michael ROSE, Defendant-Appellee.

Docket No. 69261.

Court of Appeals of Michigan.

Submitted Nov. 8, 1983.

Decided March 6, 1984.

Released for Publication May 4, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and David M. McClorey, Asst. Pros. Atty., for the People.

Jacobs & Engle, P.C. by Kathleen A. Wheeler, Jackson, for defendant-appellee.

Before ALLEN, P.J., and MAHER and BELL, ^* JJ.

PER CURIAM.

The prosecutor appeals the dismissal with prejudice of the charge against defendant for receiving and concealing stolen property valued over $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. By opinion dated January 11, 1983, the trial court ruled that defendant was an "inmate" for purposes of the 180-day rule and granted defendant's motion to dismiss.

Defendant was arrested on June 16, 1982, while on parole from the Department of Corrections. He was unable to make bail and was therefore detained in the Jackson County jail. On June 28, 1982, defendant waived preliminary examination and the Department of Corrections placed a parole hold against him. Following the pretrial conference on October 15, 1982, defendant filed motions to suppress testimony, for severance of his trial from that of his codefendants and for a bill of particulars. The motions were granted, and on December 20, 1982, the trial date was set for January 18, 1983. Defendant filed a motion to dismiss for violation of the 180-day rule of M.C.L. Sec. 780.131 et seq.; M.S.A. Sec. 28.969(1) et seq., on December 23, 1982.

The question presented is whether an individual detained in a local facility, and against whom a parole hold has been filed, is "an inmate of a penal institution of this state" to whom the protection of the 180-day rule applies. We hold that he is not and reverse the order of dismissal entered by the trial court.

In People v. Hill, 402 Mich. 272, 280-281, 262 N.W.2d 641 (1978), the Supreme Court set forth the following discussion on the running of the 180-day statutory time period:

"We hold that the statutory period begins with the coincidence of either conditions 1 or 2 and condition 3:

1) The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison;

2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and

3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody."

The extent of the statute has been said to be "unambiguously plain" and the Supreme Court has emphasized that the object of the act is to dispose of untried charges against prison inmates and, to that effect, the statute "is to be applied as written". People v. Woodruff, 414 Mich. 130, 136, 323 N.W.2d 923 (1982).

Although the Supreme Court has not addressed this issue in the context of the present factual situation, other panels of this Court have recently considered the applicability of the 180-day rule to parolees. In People v. Wright, 128 Mich.App. 374, 340 N.W.2d 93 (1983), under facts substantially similar to those of the present case, this Court held that, the filing of a parole hold did not trigger the running of the 180-day time period. Continuing, the Court stated that, until parole was revoked, a paroled prisoner who was being held in a local facility was not awaiting incarceration in a state prison by virtue of the parole hold. Thus, the 180-day rule was inapplicable and the dismissal of the criminal charges was improper.

A similar result was reached in People v. Sanders, 130 Mich.App. 246, 343 N.W.2d 513 (1983). In that case, this Court examined the scope of the phrases "penal institution" and "state prison" and determined that the 180-day rule only applies "where a person is...